As we previously reported, on Nov. 12, 2021, the Fifth Circuit Court of Appeals blocked the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) and ordered OSHA to take no steps to implement or enforce the ETS. After that, several lawsuits challenging the ETS were consolidated in the Sixth Circuit Court of Appeals, and OSHA filed a motion to dissolve the stay issued by the Fifth Circuit. On Dec. 17, 2021, the Sixth Circuit lifted the stay on the ETS, allowing OSHA to begin enforcing the rule.

ETS requirements

woman receiving vaccination to represent OSHA mandating vaccination

The ETS requires companies with 100 or more employees to require employees to provide proof of COVID-19 vaccination or weekly COVID-19 testing. Unvaccinated employees will also be required to wear masks while at work. The rule will also require employers to provide paid time off to allow employees to receive the vaccine and recover from any side effects.

Following the Sixth Circuit’s decision, OSHA announced it would not issue citations for noncompliance with any of the ETS requirements until Jan. 10, 2022. In addition, OSHA made clear it would not issue citations for noncompliance with the ETS’s testing requirements until Feb. 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Ensuring compliance

Employers will need to take steps to comply with the ETS by Jan. 10, 2022, including establishing vaccination policies, determining the vaccination status of their employees, requiring unvaccinated employees to wear masks and providing paid time off for employees to get vaccinated. Employers will have until Feb.9, 2022, to begin requiring unvaccinated employees to submit weekly COVID-19 tests.

Several opponents of the rule immediately petitioned the Supreme Court to block the ETS.  Thus, the Supreme Court will likely make the ultimate decision as to the rule’s fate. In the meantime, we strongly recommend employers work with their employment counsel to develop a plan to comply with the ETS.